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August 25, 2014

Considering pre-trial suspension without pay in determining the disciplinary penalty to be imposed


Considering pre-trial suspension without pay in determining the disciplinary penalty to be imposed
OATH Index #1804/14

The employee had been charged with (1) violating department rules, (2) negligently operated his employer’s vehicle and (3) displaying "vulgar decals" in the department’s truck. Finding that the evidence did not support charges (1) and (2), OATH Administrative Law Judge recommended the department dismiss those charges filed against the employee.

However, Judge Addison sustained the charge filed against the employee that alleged that he had pinned vulgar decals to the interior of the truck and recommended that he be suspended for 15 days without pay. Noting that the employee had served a 30-day pre-hearing suspension without pay, the ALJ then recommended that [1] the employee be credited with "time served" and [2] that he be reimbursed 15-days pay of the 30-days of his pre-hearing suspension without pay.

Civil Service Law §75.3 provides, in pertinent part, that “that the time during which an officer or employee is suspended without pay may be considered as part of the penalty.”

In Bollin v City of Kingston, 89 A.D.2d 658, the penalty imposed, two months suspension without pay, in addition to the 30-day suspension when the charges were preferred, and a fine of $100, was held neither harsh nor excessive. Bollin had been charged with, and found guilty of, [1] incompetence by allowing his bus to run out of gas on five separate occasions and [2] misconduct for smoking while operating a bus.

In general, Courts have viewed the penalties authorized by Civil Service Law §75 as mutually exclusive. In Bollin, in addition to the 30-day suspension without pay during the pendency of charges, which is not viewed as a "penalty," the employee was both suspended without pay and fined. It may be that this reflects two different penalties for the two different charges filed against him, incompetence and misconduct, which were consolidated for purposes of appeal.

Further, in Figueroa v NYS Thruway Authority, 251 A.D.2d 773, the court held that multiple §75 thirty-day suspensions without pay were permitted where additional disciplinary charges were subsequently filed against the employee
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A Reasonable Disciplinary Penalty Under the Circumstances - A 442+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html
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